Doctor loses appeal against medical tribunal’s decision she falsified report
A doctor who was removed from the medical register after being found to have intentionally falsified parts of a medical examination has had her appeal against the decision refused.
Dr Mary-Jane McLennan was found by the Medical Practitioners Tribunal to have falsely attributed quotations in a medical report to a Mr A, and reported that his speech was “heavily peppered with expletives”. She maintained at a later Employment Tribunal hearing that the report was true.
The case was heard by the Lord President, Lord Carloway, sitting with Lord Menzies and Lord Glennie, each of whom gave an opinion. Lords Carloway and Menzies refused the appeal while Lord Glennie dissented.
Mr A was an employee of the Criminal Injuries Compensation Authority (CICA) who was dismissed from his employment in 2013. He brought a claim against CICA in the Employment Tribunal on the basis that he had a disability under the Equality Act 2010, namely that he suffered from depression, IBS, and severe headaches that had a substantial impact on his ability to carry out day-to-day activities.
The appellant was instructed by solicitors for the Ministry of Justice to examine Mr A and to provide a medical report on his condition. In this report, she stated that he said had never had the problems described prior to working with CICA and that he had been harassed and victimised ever since he started working for them.
The report also stated that Mr A “cursed freely” during the examination with his speech “heavily peppered” with swear words and that his account was difficult to follow due to inconsistencies in his account. It also claimed that he said his employment was the sole source of his conditions. It concluded that Mr A possibly suffered from a condition akin to a Paranoid Personality Disorder or Dissocial Personality Disorder.
At the Employment Tribunal hearing, Mr A produced a covert recording of the examination which he asserted was proof that the appellant had fabricated parts of her report. The ET did not accept the recording or a transcript of it produced by Mr A in evidence, and heavily favoured the submissions of the appellant regarding the truthfulness of the report. As such, his claim under the Equality Act failed.
Mr A also lodged a complaint with the General Medical Council in 2014 based on the report, and eventually secured a hearing with the Medical Practitioners Tribunal in 2018. The GMC had a professional transcript of Mr A’s recording prepared, which was accompanied by expert evidence from an audio analyst and a professor of phonetics specialising in the Glaswegian accent.
The MPT could only find eight instances of swearing from Mr A contained in the recording. It found that most of the inaudible sections of the recording came when the appellant was speaking, and that it was highly unlikely that Mr A had doctored the tape to mask any of his audio. The MPT regarded Mr A as a reliable witness.
In relation to the appellant, the MPT accepted that the appellant might have been distracted at the time of the report due to her long work hours and problems with her father, but found that given the high level of detail contained within the report any alternatives to dishonesty that might have been present were not more likely than it, especially given the appellant’s years of experience.
The MPT found that the appellant had been dishonest in preparing the report on Mr A’s condition. In particular, it was found that she should have known that eight expletives over the course of an hour and a half of medical examination would not constitute speech “heavily peppered” with them, and that she inserted comments into the report based on previous GP examinations rather than the report.
The appellant argued that her use of the word “freely” was in the sense of it being uninhibited in a professional context rather than in the sense of frequency. She also argued that the MPT had erred in its approach to memory in believing that a false memory could not be created over the passage of time, and that it failed to proceed on the basis that deception was inherently improbable.
In relation to the evidence of the respondent in the MPT hearing, Lord Carloway said in his opinion: “In the absence of an acceptable explanation from the appellant, which did not exist at the sufficiency stage of the proceedings, a Tribunal would be entitled to infer dishonesty on the part of the appellant from the fact of the multiple discrepancies alone. In any event, when testing sufficiency, the Tribunal ought to disregard any explanation because, after all the evidence is led, that explanation may either not be live or it may be rejected as not credible or reliable. The Tribunal is not ultimately bound to draw the inference, but it is one which was open to it to draw from the disconnection between the terms of the report and the evidence of what was said at the examination.”
In relation to the appellant’s arguments regarding dishonesty, he added:” In order to find dishonesty established, all that was required was a determination that it was more probable than not. That would involve eliminating any alternative possibilities which were live at the end of the evidential hearing, but there was no need to find that these alternatives were ‘more probable’ than dishonesty in order to find that dishonesty was not proved. Nevertheless, it is clear that the Tribunal found that dishonesty was more probable; in fact that it was, in relation to many of the items, the only possible explanation for what the appellant had reported.”
He continued: “Once it had been established that Mr A had not said what the appellant had reported him as having said, the simple question could be more simply expressed as being whether the appellant knew that what she was reporting was not true. If that were the case, there would only be one inference that an ordinary decent person could draw.”
On the relevance of her previous good character, he said: “Although it may be legitimate to establish that an individual has no previous disciplinary record, since that is a matter which is usually readily ascertainable, there must be practical constraints on the extent to which a tribunal should otherwise permit evidence of either general good or bad character, when that character is not the gravamen of the complaint. In this case, the Tribunal were entitled to attach little weight to the appellant’s good character in so far as it bore upon the merits of the case.”
Regarding the finding of dishonesty, he said: “It is not the swearing or the appellant’s approach to it which merits the greater consideration. What was under investigation were a large number of attributed statements in a single report which, it was established, Mr A had not said. The circumstances in which this occurred were that the appellant, as a respected member of the medical profession, knew that her report would be relied upon in legal proceedings, which had been initiated by the subject of the report with a view to establishing disability discrimination.”
In relation to the appellant’s submissions on memory, he said: “Although there was no attempt on the appellant’s part at the hearing of the appeal to describe the way in which memory did work, in contrast to the Tribunal’s understanding, the suggestion was that false memory (confabulation) could have played a part. It would be extremely alarming to the legal system if false memory were to play a part in the work of medical professionals when producing reports upon examinations, even if composed three weeks later. The Tribunal did not consider that to be a possibility. They were correct to do so.”
He concluded: “In relation to each item, the Tribunal explained the reason for its decision on the particular discrepancy. Its reasoning is clear in each case. It leaves the informed reader in no real or substantial doubt as to what the reasoning for the decision was and what material considerations had been taken into account in arriving at it.”
The appeal was refused.
© Scottish Legal News Ltd 2021